Health Law

Governance Considerations from HIT for the Board and Other Hospital Stakeholders - Twitter and Patient Privacy Rights

By Helen Oscislawski

This is the second in a series of blog posts that relate to the governance concerns surrounding HIPAA, HITECH and HIT.  It is, however, not the second posting that I had originally planned. A front-page article on May 25, 2009 in the New York Times by Pam Bullock, entitled 'Hospitals Using Internet to Interact with Public,' prompted me to write on this topic as part of the series. 

In her article Ms. Bullock stated, 'Faced with economic pressures and patients with abundant choices, hospitals are using unconventional, even audacious, ways of connecting directly with the public.' She then reports that hospitals are using Twitter and transmissions from the operating room to communicate with the public on surgical results and YouTube to actually show surgery.  

This is seen by Ms. Bullock as a controversial approach to publicizing new procedures, to compete and attract patients and to stimulate contributions. In this day and age of increasing regulatory activity and heavy penalties for violations of HIPAA and state healthcare privacy and security rules, the Twitter practices should be subjected to careful scrutiny at the highest level by the governing bodies of hospitals.   The image of the hospital and its own sense of what are proper and acceptable marketing practices, the risks of legal or ethical violations from unwarranted communications, and the impact on publicity policies can be undermined by the uncontrolled actions of individuals.  The concept that the results of a complex surgical procedure can be meaningfully compressed into a rapid-fire, 140-character disclosure to the world can be somewhat perplexing.

The practice of using Twitter from the operating room to report on results is very risky and has serious implications for patient privacy. It may be a violation of existing laws or the general right of an individual to privacy.  It is always possible or even likely that the identity of a patient may become public, directly or indirectly, especially if the Twitter communication relates to a novel procedure. It is one thing to have a patient knowingly participate in publicity on YouTube and quite another to have someone send a Twitter message from the operating room while the patient is still recovering from anesthesia.

It is of equal concern that there is no control over the Twitter communications from the operating room. Anyone could make the transmission, which can be premature, totally erroneous and/or misleading.  It is a circumstance in some ways similar to the situation that judges are confronting from jurors who are sending Twitter or e-mail messages on the proceedings from the courtrooms of widely-publicized cases while the trial or jury deliberations are going on. Some judges are even prohibiting all electronic devices from being brought into the courtroom or jury deliberation room. In the case of the operating room there is the additional factor of the possibility that electronic transmissions from Twitter or e-mails may adversely affect or interfere with the normal operation of surrounding medical equipment.

The matter goes further. Will there be additional communications from the Tweeter or the hospital if the patient later develops complications or even dies? If the next patient who undergoes the same procedure does not fare well, will that be communicated through Twitter or other means to avoid misleading the public? How will the hospital control Twitter activity if it chooses to endeavor to do so? 

These questions and others should be properly considered at a high level in the hospital, with board oversight, in order to avoid or mitigate liability, maintain the hospital's reputation for candor and transparency and avoid the adverse publicity of regulatory violations and penalties.  It is likely that the board should require that the hospital's code of ethics address in greater detail how and when, if at all, electronic communications relating to patient procedures are communicated to the public and the nature of the patient consent that will be required.

Full post as published by HIPAA Health Law & Technology on May 26, 2009 (boomark / email).